United States of America v. Schmidt et al

Filing 78

ORDER denying plaintiff's 63 Motion to Disqualify and Exclude David E. Hunnicutt; granting plaintiff's 64 Motion in Limine, signed by Judge Robert S. Lasnik. (SWT) cc: William Schmidt via USPS

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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_______________________________________
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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WILLIAM P. SCHMIDT, et al.,
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Defendants.
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_______________________________________)

Case No. C16-0985RSL
ORDER DENYING PLAINTIFF’S
MOTION TO EXCLUDE EXPERT
TESTIMONY AND GRANTING
MOTIONS IN LIMINE

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This matter comes before the Court on the United States of America’s motion to exclude
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expert testimony and motions in limine. Dkt. # 63 and # 64. Plaintiff’s evidentiary motions were
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properly noted on the Court’s calendar (see Dkt. # 30 at 1) and, although they should have been
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filed as a single motion and plaintiff’s counsel should have attempted to confer regarding a
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number of the issues raised long before defendants provided their pretrial statements (see LCR
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7(d)(4)), the motions have been considered on their merits. Having reviewed the papers
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submitted, the Court finds as follows:
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1. Defendants Sufian Hamad and Riverton Holding, LLC, are barred from calling Gerald
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Robison, Elizabeth Lee, Jack Heutmaker, and/or an IRS representative as witnesses at trial.
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2. Defendants proposed exhibits 1, 2, 8, 19, 26, 27, and 28 are excluded from trial. The
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fact that defendants waited until the last minute to obtain or, in some cases, generate exhibits for
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use at trial does not justify their late disclosure. This tactic has prevented the government from
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investigating the accuracy and authenticity of the evidence through discovery. To the extent Mr.
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Hamad has personal knowledge of matters represented in these exhibits (including payments
ORDER

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made), he may testify to those matters.

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3. The United States seeks to preclude defendants’ real estate appraiser, David E.

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Hunnicutt, from testifying at trial because he amended his appraisal report and the United States

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finds his explanations for the changes incredible. Other than noting that its expert prefers the

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income approach to valuing the subject property, plaintiff does not object to the methodology

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used in either report. Rather, plaintiff argues that the revised appraisal must have been results-

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oriented because (a) the revision was made at defendants’ request and (b) the revision supports

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defendants’ theory of the case. The revised report, standing alone, rests on a reliable (although

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not unassailable) foundation, is based on accepted evaluative methods, and is relevant to the

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issues presented in this litigation. Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807,

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813 (9th Cir. 2014) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993)).

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“Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and

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attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir.

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2010).
The Court declines to make credibility findings on the papers submitted and will credit

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Mr. Hunnicutt’s deposition testimony that he belatedly identified properties that were more

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comparable to the subject property. Mr. Hunnicutt will be permitted to testify at trial.

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For all of the foregoing reasons, plaintiff’s “Motion to Disqualify and Exclude David E.

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Hunnicutt” (Dkt. # 63) is DENIED and plaintiff’s “Motion in Limine” (Dkt. # 64) is

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GRANTED.

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Dated this 3rd day of January, 2018.

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A

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Robert S. Lasnik
United States District Judge

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ORDER

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